1. These are eight rules issued by this Court calling on the District Magistrate and also on the opposite parties to show cause why the order complained of, namely, that of the Deputy Magistrate of Serajgunge, dated 11th November 1927, discharging the accused under Section 253, Criminal P.C., should not be set aside or such other order made as to this Court might seem fit and proper.
2. The facts involved in these eight rules are the same and they may be conveniently disposed of by one judgment.
3. The petitioners are eight different taxpayers within the Serajgunge Municipality. The opposite party No. 1 is the Chairman of the Municipality, the opposite party No. 2 is the Warrant Bailiff and the opposite party No. 3 is the Tax Collector. They are the accused in these cases. The case for the prosecution is that the Chairman of the Municipality in direct contravention of the provisions of the Bengal Municipal Act realized certain arrears of taxes and costs by the issue of distress warrants and thereby committed an offence punishable under Section 384, I.P.C. The learned trying Magistrate was of opinion that under the provisions of Section 197, Criminal P.C. the sanction of the Local Government was necessary before any proceedings against the Chairman of the Serajgunge Municipality could be maintained. He thereupon dismissed the case against the Chairman. As regards the other two accused, the Magistrate was of opinion that they were only acting under the orders of the Chairman and there was no case against them. Against the orders of the trying Magistrate applications were made to the Sessions Judge of Pabna-Bogra under Section 436, Criminal P.C. but those applications were dismissed, as the learned Sessions Judge was of opinion that the orders of the trying Magistrate in these cases were correct.
4. The ground upon which the present rules have been issued, by this Court is as follows, viz., that the Courts below were in error in holding that the Chairman of the Municipality was not removable from his office without the sanction of the Local Government. This ground does not obviously apply to the opposite parties Nos. 2 and 3. The record before us does not show that these accused, namely, opposite parties Nos. 2 and 3, were acting mala fide in the matter of the realization of the arrears of rates and taxes and in our opinion these rules must be discharged so far as opposite parties Nos. 2 and 3 are concerned.
5. The argument against the opposite party No. 1, namely, the Chairman of the Serajgunge Municipality, depends upon the answer to the question whether the Chairman of the Serajgunge Municipality is a public servant who is not removable from his office save by or with the sanction of the Local Government within the meaning of Section 197, Criminal P.C. There is no question that the acts alleged to have been committed by the Chairman were so done while acting or purporting to act in the discharge of his official duties. Now under Section 19, Bengal Municipal Act (Bengal Act 3 of 1884), the Local Government may remove a Commissioner appointed or elected under the Act if such Commissioner has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct. Under Section 20 the Commissioner of the Division may remove any Commissioner in the circumstances referred to in the sub-clauses to the section. Under Section 23, Sub-clause 2, the Commissioners of certain Municipalities not included in Schedule 2 of the Act are entitled to elect one of their number to be Chairman or may, whenever a vacancy occurs, at a meeting attended by not less than two-thirds of the Commissioners request the Local Government to appoint a Chairman and such Chairman shall be appointed by name. Under Section 23, Sub-section 3, the Local Government may at any time remove a Chairman appointed by it. Now it appears that the name of the Serajgunge Municipality is not included in Schedule 2 of the Act and therefore it is apparent that the Commissioners of the Serajgunge Municipality are entitled to elect one of their number to be their Chairman. The opposite party No. 1 is an elected Chairman of the Serajgunge Municipality. Under Section 24, an elected Chairman may be removed from his office by a resolution of the Commissioners in favour of which not less than two-thirds of the whole number of the Commissioners have given their vote at a meeting specially convened for the purpose; but the removal under this section of a Chairman from office is by Section 59 of the Act subject to the approval of the Local Government. It is argued that in certain circumstances the elected Chairman qua a Commissioner of the Municipality can be removed by the Commissioner of the Division under Section 20 of the Act, and if that is so the elected Chairman of the Serajgunge Municipality can hardly be described as a public servant who is not removable from his office save by or with the sanction of the Local Government. In support of this contention reliance is placed on the case reported in Mahomed Yasin v. Emperor where it was held that no sanction was necessary under Section 197, Criminal P.C., to prosecute the Chairman of a Union Committee who is removable from office in certain circumstances under Section 18, Bengal Act 3, 1885 by the Commissioner, though he is also removable in other circumstances under Section 18-A of the Act by the Lieutenant Governor. In our opinion the case last mentioned is easily distinguishable from the present case. The question in this case is whether the Chairman of the Serajgunge Municipality as Chairman can be removed by the Commissioner of the Division. He is clearly not so removable. If he is to be removed the procedure indicated in Section 24 of the Act must be resorted to. The question really is not of the removal of the Chairman qua Commissioner of the Municipality concerned and it would appear from a consideration of the sections referred to above that the Commissioner of the Division is not the proper authority to take action for his removal. It follows from what has been stated above that in our opinion the opposite party No. 1 is a public servant within the meaning of Section 197, Criminal P.C., who is not removable from his office save by or with the sanction of the Local Government No such sanction was obtained in these cases and the result is that the ground upon which these rules were issued fails and the same must accordingly be discharged.